In early 2013, Michael Moffitt, the dean of Oregon Law, was interviewed by the New York Times about the tumult affecting law schools. Moffitt, who is a very thoughtful guy, reponded, "I feel like I am living a business school case study.”

I think the analogy to the business school case study is a good one. In the nearly two years since that story was published, the market for law school applicants has actually gotten worse.

"It's insane," said Rodriguez, "We’re in hand-to-hand combat with other schools." The trendlines are indeed terrible. Year-over-year, LSAT test-taker volume is down another 8.7%. See Organ, LWB, Nov 11, 2014. So we can expect the situation to get worse, at least in the near term.

I applaud Dan Rodriguez for this leadership instincts. He is being transparent and honest. Several years ago the leadership of the AALS went to great lengths to avoid engagement with the media. Dan has gone the opposite direction, inviting the press into our living room and kitchen.

Want to know what leadership and judgment look like? It looks like Dan's interview with Elizabeth Olson. Dan's words did not solve anyone's problem, but his honesty and candor made it more likely that we help ourselves. Because it's Northwestern, and Dan is president of the AALS (something the story did not mention but most of us know), and this was reported by Elizabeth Olson in the New York Times, the substance and tenor of discussions within law school faculties is bound to shift, at least slightly and in the direction favoring change.

What is the de facto plan at most law schools these days? Universities are not going to backstop law schools indefinitely. I think the sign below is not far off the mark.

We are indeed living through a business school case study, which is both bad and good. At many schools -- likely well more than half -- hard choices need to be made to ensure survival. (And for the record, virtually all schools, regardless of rank, are feeling uncomfortable levels of heat.) A law school needs cash to pay its expenses. But it also needs faculty and curricula to attract students. The deeper a law school cuts, the less attractive it becomes to students. Likewise, pervasive steep discounts on tuition reflect a classic collective action problem. Some schools may eventually close, but a huge proportion of survivors are burning through their financial reserves.

Open admissions, which might pay the bills today, will eventually force the ABA and DOE to do something neither really want to do -- aggressively regulate legal education. This is not a game that is likely to produce many winners. Rather than letting this play out, individual law schools would be much better off pursuing a realistic strategic plan that can actually move the market.

The positive side of the business school case study is that a few legal academics are finding their voice and learning -- for the first time in several generations -- how to lead. Necessity is a wonderful tutor. Law is not an industry on the decline -- far from it. The only thing on the decline is the archetypal artisan lawyer that law schools are geared to churn out. Indeed, back in 2013 when Dean Moffitt commented about living through a business school case study, he was not referencing imminent failure. Sure, Moffitt did not like the hand he was being dealt, but as the 2013 article showed, his school was proving to be remarkably resourceful in adapting.

The good news resides on the other side of a successful change effort. The process of change is painful, yet the effects of change can be transformative and make people truly grateful for the pain that made it all possible. In our case, for the first time in nearly a century, what we teach, and how we teach it, is actually going matter. If we believe serious publications like The Economist, employers in law, business, and government need creative problem solvers who are excellent communicators, adept at learning new skills, and comfortable collaborating accross multiple disciplines -- this is, in fact, a meaningful subset of the growing JD-Advantage job market.

In the years to come, employers will become more aggressive looking for the most reliable sources of talent, in part because law schools are going to seek out preferred-provider relationships with high quality employers. Hiring based on school prestige is a remarkably ineffective way to build a world-class workforce -- Google discovered this empirically.

From an employer perspective, the best bet is likely to be three years of specialized training, ideally where applicants are admitted based on motivation, aptitude, and past accomplishments. The LSAT/UGPA grid method misses this by a wide margin. After that, the design and content of curricula are going to matter. It is amazing how much motivated students can learn and grow in three years. And remarkably, legal educators control the quality of the soil. It brings to mind that seemingly trite Spiderman cliche about great power.

For those of us working in legal education, the next several years could be the best of times or the worst of times. We get to decide. Yesterday's article in the Times made it a little more likely that we actually have the difficult conversations needed to get to the other side.

There is a line in Professor Reich-Graefe's recent essay, Keep Calm and Carry On, 27 Geo. J. Legal Ethics 55 (2014), that is attracting a lot of interest among lawyers, law students, and legal academics:

[R]ecent law school graduates and current and future law students are standing at the threshold of the most robust legal market that ever existed in this country—a legal market which will grow, exist for, and coincide with, their entire professional career.

This hopeful prediction is based on various trendlines, such as impending lawyer retirements, a massive intergenerational transfer of wealth that will take place over the coming decades, continued population growth, and the growing complexity of law and legal regulation.

Although I am bullish on future growth and dynamism in the legal industry, and I don't dispute the accuracy or relevance of any of the trendlines cited by Reich-Graefe, I think his primary prescriptive advice -- in essence, our problems will be cured with the passage of time -- is naive and potentially dangerous to those who follow it.

The Artisan Lawyer Cannot Keep Up

The primary defect in Reich-Graefe's analysis is that it is a one-sided argument that stacks up all impending positive trendlines without taking into account the substantial evidence that the artisan model of lawyering -- one-to-one consultative legal services that are tailored to the needs of individual clients -- is breaking down as a viable service delivery model.

Lawyers serve two principal constituencies--individuals and organizations. This is the Heinz-Laumann "Two-Hemisphere" theory that emerged from the Chicago Lawyers I and II studies. See Heinz et al, Urban Lawyers (2005). The breakdown in the artisan model can be observed in both hemispheres.

People. Public defenders are understaffed, legal aid is overwhelmed, and courts are glutted with pro se litigants. Remarkably, at the same time, record numbers of law school graduates are either unemployed or underemployed. Why? Because most poor and middle-class Americans cannot afford to buy several hours of a lawyer's time to solve their legal problems.

Organizations. The most affluent organizations, multinational corporations, are also balking at the price of legal services. As a result, foreign labor, technology, process, or some combination thereof has become a replacement for relatively expensive and unskilled junior lawyers.

The primary driver of this structural shift is the relentless growth in legal complexity. This increase in complexity arises from many sources, including globalization, technology, digitally stored information, and the sheer size and scope of multinational companies.

But here is a crucial point: the complexity itself is not new, only its relative magnitude. A century ago, as the modern industrial and administrative state was beginning to take shape, lawyers responded by organizing themselves into law firms. The advent of law firms enabled lawyers to specialize and thus more cost-effectively tackle the more complex legal problems. Further, the diffusion of the partner-associate training model (sometimes referred to as the Cravath system) enabled firms to create more specialized human capital, which put them in an ideal position to benefit from the massive surge in demand for legal services that occurred throughout the 20th century. See Henderson, Three Generations of Lawyers: Generalists, Specialists, Project Managers, 70 Maryland L Rev 373 (2011).

The legal industry is at the point where it is no longer cost effective to deal with this growing complexity with ever larger armies of artisan-trained lawyers. The key phrase here is cost effective. Law firms are ready and willing to do the work. But increasingly, clients are looking for credible substitutes on both the cost and quality fronts. Think car versus carriage, furnace versus chimney sweep, municipal water system versus a well. A similar paradigm shift is now gaining momentum in law.

The New Legal Economy

I have generated the graph below as a way to show the relationship between economic growth, which is the engine of U.S. and world economies, and the legal complexity that accompanies it.

This chart can be broken down into three phases.

1.Rise of the law firm. From the early twentieth century to the early 1980s, the increasing complexity of law could be capability handled by additional law firm growth and specialization. Hire more junior lawyers, promote the best ones partner, lease more office space, repeat. The complexity line has a clear bend it in. But for most lawyers, the change is/was very gradual and feels/felt like a simple linear progression. Hence, there was little urgency about the need for new methods of production.

2. Higher law firm profits. Over the last few decades, the complexity of law outpaced overall economic growth. However, because the change was gradual, law firms, particularly those with brand names, enjoyed enough market power to perennially increase billing rates without significantly improving service offerings. Corporate clients paid because the economic benefits of the legal work outweighed the higher costs. Lower and middle class individuals, in contrast, bought fewer legal services because they could not afford them. But as a profession, we barely noticed, primarily because the corporate market was booming. See Henderson, Letting Go of Old Ideas, 114 Mich L Rev 101 (2014).

3. Search for substitutes. Laws firms are feeling discomfort these days because the old formula -- hire, promote, lease more space, increase rates, repeat -- is no longer working. This is because clients are increasingly open to alternative methods of solving legal problems, and the higher profits of the last few decades have attracted new entrants. These alternatives are some combination of better, faster, and cheaper. But what they all share in common is a greater reliance on technology, process, and data, which are all modes of problemsolving that are not within the training or tradition of lawyers or legal educators. So the way forward is profoundly interdisciplinary, requiring collaboration with information technologists, systems engineers, project managers, data analysts, and experts in marketing and finance.

Why is this framework potentially difficult for many lawyers, law firms, and legal educators to accept? Probably because it requires us to cope with uncertainties related to income and status. This reluctance to accept an unpleasant message creates an appetite for analyses that say "keep calm and carry on." This is arguably good advice to the British citizenry headed into war (the origin of the saying) but bad advice to members of a legal guild who need to adapt to changing economic conditions.

There is a tremendous silver lining in this analysis. Law is a profoundly critical component of the globalized, interconnected, and highly regulated world we are entering. Lawyers, law firms, and legal educators who adapt to these changing conditions are going to be in high demand and will likely prosper economically. Further, at an institutional level, there is also the potential for new hierarchies to emerge that will rival and eventually supplant the old guard.

Examples

One of the virtues of lawyers is that we demand examples before we believe something to be true. This skepticism has benefited many a client. A good example of the emerging legal economy is the Available Positions webpage for kCura, which is a software company that focuses exclusively on the legal industry.

The current legal job market is terrible, right? Perhaps for entry-level artisan-trained lawyers. But at kCura, business is booming. Founded in 2001, the company now employs over 370+ workers and has openings for over 40 full-time professional positions, the majority of which are in Chicago at the company's LaSalle Street headquarters. Very few of these jobs require a law degree -- yet the output of the company enables lawyers to do their work faster and more accurately.

What are the jobs?

API Technical Writer [API = Application Programming Interface]

Big Data Architect - Software Engineering

Business Analyst

Enterprise Account Manager

Group Product Manager

Litigation Support Advice Analyst

Manager - Software Engineering

Marketing Associate

Marketing Specialist -- Communications

Marketing Specialist -- Corporate Communications and Social Media

Product Manager -- Software and Applications Development

QA Software Engineer -- Performance [QA = Quality Assurance]

Scrum Team Coordinator [Scrum is a team-based software development methodology]

kCura operates exclusively within the legal industry, yet it has all the hallmarks of a great technology company. In the last few years it has racked up numerous awards based on the quality of its products, its stellar growth rate, and the workplace quality of life enjoyed by its employees.

That is just what is happening at kCura. There are many other companies positioning themselves to take advantage of the growth opportunities in legal, albeit none of them bear any resemblance to traditional law firms or legal employers.

In early February, I attended a meeting in New York City of LexRedux, which is comprised of entrepreneurs working in the legal start-up space. In a 2008 essay entitled "Legal Barriers to Innovation," Professor Gillian Hadfield queried, "Where are the 'garage guys' in law?" Well, we now know they exist. At LexRedux, roughly 100 people working in the legal tech start-up space were jammed into a large open room in SoHo as a small group of angel investors and venture capitalists fielded questions on a wide range of topics related to operations, sales, and venture funding.

According to Angel's List, there are as of this writing 434 companies identified as legal start-ups that have received outside capital. According to LexRedux founder Josh Kubicki, the legal sector took in $458M in start-up funding in 2013, up from essentially zero in 2008. See Kubicki, 2013 was a Big Year for Legal Startups; 2014 Could Be Bigger, Tech Cocktail, Feb 14, 2014.

The legal tech sector is starting to take shape. Why? Because the imperfections and inefficiencies inherent in the artisan model create a tremendous economic opportunity for new entrants. For a long period of time, many commentators believed that this type of entrepreneurial ferment would be impossible so long as Rule 5.4 was in place. But in recent years, it has become crystal clear that when it comes to organizational clients where the decisionmaker for the buyer is a licensed lawyer (likely accounting for over half of the U.S. legal economy) everything up until the courthouse door or the client counseling moment can be disaggregated into a legal input or legal product that can be provided by entities owned and controlled by nonlawyers. See Henderson, Is Axiom the Bellwether of Legal Disruption in the Legal Industry? Legal Whiteboard, Nov 13, 2013.

The Legal Ecosystem of the Future

In his most recent book, Tomorrow's Lawyers, Richard Susskind describes a dynamic legal economy that bares little resemblance to the legal economy of the past 200 years. In years past, it was easier to be skeptical of Susskind because his predictions seemed so, well, futuristic and abstract. But anyone paying close attention can see evidence of a new legal ecosystem beginning to take shape that very much fits the Susskind model.

Susskind's core framework is the movement of legal work along a five-part continuum, from bespoke to standardized to systematized to productized to commoditized. Lawyers are most confortable in the bespoke realm because it reflects our training and makes us indispensible to a resolution. Yet, the basic forces of capitalism pull the legal industry toward the commoditized end of the spectrum because the bespoke method of production is incapable of keeping up with the needs of a complex, interconnected, and highly regulated global economy.

According to Susskind, the sweet spot on the continuum is between systematized and productized, as this enables the legal solution provider to "make money while you sleep." The cost of remaining in this position (that is, to avoid commoditization) is continuous innovation. Suffice it to say, lawyers are unlikely to make the cut if they choose to hunker down in the artisan guild and eschew collaboration with other disciplines.

Below is a chart I have generated that attempts to summarize and describe the new legal ecosystem that is now taking shape [click-on to enlarge]. The y-axis is the Heinz-Laumann two-hemisphere framework. The x-axis is Susskind's five-part change continuum.

Those of us who are trained as lawyers and have worked in law firms will have mental frames of reference that are on the left side of the green zone. We tend to see things from the perspective of the artisan lawyer. That is our training and socialization, and many of us have prospered as members of the artisan guild.

Conversely, at the commoditized end of the continuum, businesses organized and financed by nonlawyers have entered the legal industry in order to tap into portion of the market that can no longer be cost-effectively serviced by licensed U.S. lawyers. Yet, like most businesses, they are seeking ways to climb the value chain and grow into higher margin work. For example, United Lex is one of the leading legal process outsourcers (LPOs). Although United Lex maintains a substantial workforce in India, they are investing heavily in process, data analytics, and U.S. onshore facilities. Why? Because they want to differientiate the company based on quality and overall value-add to clients, thus staving off competition from law firms or other LPOs.

NewLaw. These are non-law firm legal service organizations that provide high-end services to highly sophisticated corporations. They also rely heavily on process, technology, and data. Their offerings are sometimes called "managed services." Novus Law, Axiom, Elevate, and Radiant Law are some of the leading companies in this space.

TechLaw. These companies would not be confused with law firms. They are primarily tool makers. Their tools facilitate better, faster, or cheaper legal output. kCura, mentioned above, works primarily in the e-discovery space. Lex Machina provides analytic tools that inform the strategy and valuation of IP litigation cases. KM Standards, Neota Logic, and Exemplify provide tools and platforms that facilitate transactional practice. In the future, these companies may open the door to the standardization of a wide array of commercial transactions. And standardization drives down transaction costs and increases legal certainty -- all good from the client's perspective.

PeopleLaw. These companies are using innovative business models to tap into the latent people hemisphere. Modria is a venture capital-financed online dispute resolution company with DNA that traces back to PayPal and the Harvard Negotiations Workshop. See Would You Bet on the Future of Online Dispute Resolution (ODR)? Legal Whiteboard, Oct 20, 2013. LegalForce is already an online tour de force in trademarks -- a service virtually every small business needs. The company is attempting to translate its brand loyalty in trademarks into to new consumer-friendly storefront experience. Its first store is in the heart of University Avenue in Palo Alto. LegalForce wants to be the virtual and physical portal that start-up entrepreneurs turn to when looking for legal advice.

Conclusion

When I write about the changes occurring in the legal marketplace, I worry whether the substance and methodology of U.S. legal education provides an excellent education for a legal world that is gradually fading away, and very little preparation for the highly interdisciplinary legal world that is coming into being.

Legal educators are fiduciaries to our students and institutions. It is our job to worry about them and for them and act accordingly. Surely, the minimum acceptable response to the facts at hand is unease and a willingness to engage in deliberation and planning. Although I agree we need to stay calm, I disagree that we need to carry on. The great law schools of the 21st century will be those that adapt and change to keep pace with the legal needs of the citizenry and broader society. And that task has barely begun.

I think the answer is yes. But, unfortunately, in virtually all of the debate surrounding legal education, there is a tremendous lack of clarity and precision about how we assess improvements in quality. And equally relevant, if a gain is real, was it worth the cost?

The purpose of this essay is to chip away at this serious conceptual gap. Until this gap is filled, experiential education will fall significantly short of its potential.

Is Experiential Legal Education Better? And if so, at What Cost?

Many legal educators believe that if we had more clinics, externships, and skills courses in law school, legal education would be better. Why? Because this more diversified curriculum would become more "experiential."

Inside the legal education echo chamber, we often accept this claim as self-evident. The logic runs something like this. A competent lawyer needs domain knowledge + practical skills + a fiduciary disposition (i.e., the lawyer’s needs are subservient to the needs of clients and the rule of law). Since practical skills—and some would argue, a fiduciary disposition—cannot be effectively acquired through traditional Socratic or lecture teaching methods, the ostensible logic is that schools become better by embracing the "learning-by-doing" experiential approach.

That may be true. I would bet on it. But the per-unit cost of legal education is also probably going up as well. So, have we really created a viable and sustainable long-term improvement to legal education?

In my mind, the questions we should be asking instead are the following: (1) Among experiential teaching methods, which ones are the most effective at accelerating professional development? And (2) among these options, how much does each cost to operate? Quality and cost must be assessed simultaneously. After they are evaluated, then we will be able to make choices and tradeoffs.

Let's start with quality, which I define as moving lawyers toward their peak effectiveness potential as rapidly and cost-effectively as possible. This is an education design problem, as we are trying to find the right combination of education (building domain knowledge) and experience (acquiring and honing skills through practice). There is also likely to be an optimal way to sequence the various educational and experiential steps.

Creating Compelling Evidence of Educational Quality

We legal educators have many ideas on how to improve educational quality, but we make no real progress if employers and students remain unconvinced. Can it be shown that because of a specific type of experiential curriculum at School X, its graduates are, during the first few years of practice, more capable lawyers than graduates of School Y?

[Side bar: If you are skeptical of this market test, it is worth noting that it was the preferences of law firm employers who gave rise to the existing national law school hierarchy. It happened about 100 years ago when a handful of law schools adopted the case method, required undergraduate education as a prerequisite to admission, and hired scholars as teachers. As a general matter, this was a far better education than a practitioner reading lecture notes at the local YMCA. See William Henderson, "Successful Lawyer Skills and Behaviors," in Essential Qualities of the Professional Lawyer ch 5 (P. Haskins ed., 2013).]

If a law school can produce, on balance, a better caliber of graduates than its competitors, then we are getting somewhere. As this information diffuses, employers (who want lawyers who make their lives easier) will preference law schools with the better graduates, and law students (who want more and better career options) will follow suit. Until we have this level of conceptual and empirical clarity, we might as well be debating art or literature.

If students and employers are responding to particular curricula, it is reasonable to assume they are responding to perceived value (i.e., quality as a function of price). I believe there are three steps needed to create a legal education curriculum that truly moves the market.

1. Clarity on Goals. We need to understand the knowledge, skills, and behaviors that are highly prized by legal and non-legal employers. Truth be told, this is tacit knowledge in most workplaces. It is hard intellectual work to translate tacit knowledge into something explicit that can be communicated and taught. But we are educators -- that is our job! If we think employers are missing something essential, we can add in additional factors. That's our job, too.

2. Designing and Building the Program. Working backwards from our goals, let's design and build curricula that will, overall, accelerate development toward those goals. This is harder and more rigorous than lesson planning from a casebook.

3. Communicating Value to the Market. If our program is indeed better, employers and students need to know it. This also requires a crisp, accurate message and a receptive audience. This requires planning and effort. That said, if our program truly is producing more effective lawyers, it logically follows that our graduates (i.e., the more effective lawyers) will be the most effective way to communicate that message.

Regarding point #3, in simple, practical terms, how would this work?

During the 1L year, we show our law students the roadmap we have developed (step #2) and spend the next two years filling in the knowledge, skills, and behaviors needed to achieve their career goals. This professional development process would be documented through a portfolio of work. This would enable students to communicate specific examples of initiative, collaborative learning, problem-solving, or a fiduciary disposition, etc., developed during law school. Students would also know their weaknesses, and have a clear plan for their future professional development. In a word, they'd stand out from other law graduates because, as a group, they would be much more intentional and self-directed (i.e., they'd know where they are going and how to get there).

With such a curriculum in place, our law school would collaborate with employers assess the performance of our graduates. By implication, the reference point for assessing quality would be graduates from other law schools. When our graduates fare better, future graduates will be more heavily recruited. Why? Because when an employer hires from our school, they would be more likely to get a lawyer who helps peers and clients while adding immediate enterprise value.

I suspect that many of my legal academic colleagues would argue the best law schools are not trade schools -- I 100% agree. But I am not talking about a trade school model. Rather, a world-class law school creates skilled problem-solvers who combine theory with practice and a fiduciary disposition. Graduates of a world-class law school would be reliably smart, competent, and trustworthy. This is a very difficult endeavor. It takes time, planning, collaboration, creativity and hard work. But the benefits are personal, organizational, and societal.

At a practical level, I think few law schools have targeted this goal with a full, unbridled institutional commitment. But the opportunity exists.

Applied Research

When I got tenure in 2009, I decided that I was going to spend the next several years doing applied research. I am a fact guy. Rather than argue that something is, or is not, better, I prefer to spend my time and effort gathering evidence and following the data. I am also a practical guy. The world is headed in this direction, thanks to the ubiquity of data in the digital age. And, on balance, that is a good thing because it has the potential to reduce conflict.

I have pursued applied work in two ways: (1) building stuff (curricula, selection systems, lawyer development tools, datasets for making strategic decisions, etc.) and assessing how well it works, and (2) observing and measuring the work of others.

A Law School Curriculum Worth Measuring

A couple of years ago, a really unique applied research opportunity fell onto my lap. I had a series of lengthy discussions on the future of legal education with Emily Spieler, who was then serving as dean of Northeastern University School of Law in Boston, a position she held for over a decade. One of the raps on legal education is that it is more alike than it is different. In fact, this very point was just made by the ABA Taskforce on Legal Education. See ABA Task Force On The Future Of Legal Education, Report And Recommendations (Jan. 2014) at 2.

Emily, in contrast, said her school was unique -- that the curriculum better prepared students for practice and enabled them to make better career planning decisions. Also, Emily stated that Northeastern students were more sensitized to the needs of clients and the privilege and burden of being a lawyer--specifically, that Northeastern grads become aware, before graduation, that their own lack of competency and diligence has real-world consequences for real-world people. And that reality weighed on students' minds.

Tall claims. But if Northeastern coulddeliver those outcomes more effectively than the traditional unstructured law school curriculum, I wanted to know about it.

On a purely structural level, Northeastern Law is definitely unique. Most law schools are organized on either quarters (University of Chicago, my alma mater) or semesters (Indiana University, where I teach). Northeastern, however, has both. The 1L year curriculum at Northeastern is the traditional two semester model. But after that, the school flips to quarters -- one quarter in law school, and one quarter in a cooperative placement with a legal employer, such as a judge, prosecutor’s office, a law firm, a corporate legal department, or a public interest organization.

This classroom/coop sequence occurs four times over eight quarters. Because the cooperative placement is not viewed as part of Northeastern's ABA-required course work -- all the contact hours are packed into two 1L semesters and four 2L/3L quarters -- students can be paid during cooperative placements. And in any given semester, roughly 30 to 40% are getting paid.

This system has been up and running for 45 years--over 5,000 students have become lawyers through this program. What an amazing research opportunity!

Now imagine the faculty meeting where the law professors get together to discuss and deliberate over whether to adopt the Northeastern model. At Northeastern, "summer" means summer quarter, not summer vacation.

How did this unique curricular structure come into being? That is quite an interesting story. During the 1950s, the law school at Northeastern was shuttered. Yet, reflecting the zeitgeist of the times, a group of Northeastern law alumni and young lawyers who were skeptical of their own legal education (at elite national law schools) petitioned Northeastern to reopen the law school and feature a more progressive, forward-looking curriculum. The university administration agreed to reopen the law school on the condition that the school adopt the signature cooperative education model. So this crucial decision was essentially made at the birth of the law school over four decades ago. Once up and running, Northeastern Law implemented other innovations, such as the narrative grading policy--i.e., no letter grades and no GPA. This was done in order to mitigate competition and encourage a focus on collaboration and skills development.

The Outcomes Assessment Project

Back in 2011, my conversations with Emily Spieler eventually led me to make a two-day pilgrimage to Boston to talk with Northeastern Law faculty, students, administrators, and coop employers. Suffice it to say, I was surprised by what I witnessed --a truly differentiated legal education with a substantial alumni/ae base spanning 45 years.

That pilgrimage eventually led to my involvement in Northeastern Law's Outcomes Assessment Project (OAP), which is something akin to The After the JD Project, but limited in scope to Northeastern -- although Northeastern will provide all of the project tools and templates to other law schools interested in studying their own alumni. From the outset, the OAP has been set up to scale to other law schools.

There are lots of tricky methodological issues with Northeastern. For example,

It has a longstanding public interest tradition; Northeastern Law is overrepresented in government service, public interest, and non-profit sectors (including a sizeable contingent of law professors and legal clinicians). See Research Bulletin No 1.

Its student body was over 50% female almost from the outset, nearly 20 years before legal education as a whole.

Because of its progressive roots, GLBT law students have long been drawn to Northeastern Law -- again, nearly two decades before it was deemed safe to be out.

Because of this distinctive profile, we have to worry that any differences in graduates are primarily due to a selection effect (who applied and enrolled) versus a treatment effect (they got a different type of education). That said, the admissions data show that Northeastern Law students are, like other law students, strongly influenced by the US News rankings. If a student gets admitted to Northeastern Law and BC, BU, or Harvard Law, Northeastern seldom wins.

Over the coming months, I am going to use OAP data to attempt to develop some analytical and empirical clarity to some of the questions surrounding experiential education. Preliminary data from our Research Bulletin No 3 suggest that the coop program does remarkably well in developing the three apprenticeships identified by the Carnegie Report. More on that later.

If you have the courage and curiosity to understand the breadth and depth of the changes taking shape in the legal market, then I would encourage you to use some of your Thanksgiving break to read "Recalculate the Future of Law," which is Insight Lab's interview with MSU Law Professor Dan Katz.

It is all-too-easy to believe that innovation occurs in the wake of a great idea, but that is not quite right. Innovation is also about timing and understanding how human institutions are held together and change and evolve. If the innovator has the benefit of timing and understands how human institutions actually work, an effective adoption strategy is possible.

Fortunately, for Dan Katz, all of these factors appear to be in alignment. Katz is acutely aware of his timing and the myriad of factors that enable innovation to take hold. He is also young (35 years old) and has the courage to place very large bets -- the largest bet being that he is not waiting to get tenure before starting his life's work. He is doing it now in his third year of teaching.

But to mind, there is some additional secret sauce. What makes Katz so disruptive is his 100% personal commitment to the growth and potential of his students. He is awaking the sleeping giant -- hope and a sense of purpose for young people. Specificially law students. If you are in his ReInvent Law Labratory, you see a different legal landscape with a whole lot more options. But to tap into that hope, Dan makes you do the work. You have to challenge yourself. And you have to shed the bullshit phobia over basic math. He is building a community of interest that has the potential to morph into a movement driven by young lawyers and law graduates. For more on Katz's unusual bio, see "This is just an education design problem," LWB, Sept 23, 2013.

The interviewer over at Insight Labs got pretty close to the full, uneditted Dan. If you want to learn about the underinvestment problem that is undermining BigLaw, the crucial role of start-ups in the emerging field of legal R&D, how the next generation of law students can do well and do good, or the real hazards of the $1 Million JD debate, give it a full read.

Is it important to help law students understand the disruptions that are now occurring in the legal industry? Well, let me ask a more fundamental question. How can a law professor efficiently obtain better information on these complex and diffuse changes? None of us legal academics are experts in this area, and that's a problem in and of itself.

In the process of struggling with these questions, I decided to carve out 15% of the grade in my Corporations class for team-based profiles of NewLaw companies. Here is how I described the conundrum in my syllabus:

The legal industry is changing in dramatic ways, including the creation of new legal businesses that rely upon technology and process design to solve legal problems that have traditionally been handled by lawyers. These businesses are often financed and managed by nonlawyers, which some of you may find surprising. ...

Remarkably, very few practicing lawyers grasp the type of industry context described above ... Yet, the influx of financiers and technologists is likely going to have a dramatic effect on your future legal careers. These changes are extremely foreign to the substance of traditional legal education – we (the legal professoriate) just don’t understand the breadth and depth of the changes that are now occurring. Rather than sweep this uncomfortable fact under the rug, let’s do what great lawyers do with their clients. Let’s learn about the business and the industry so that we understand the context. Armed with this information, we can make better decisions with regard to our own careers.

Two months ago, I circulated the full assignment to the class, divided the class into teams, and gave students two weeks to select a company. The only restrictions were no duplicates, so first-come first-serve, and the company had to be a non-law firm business operating, partially or entirely, in the legal industry. (BTW, JB Ruhl'sLaw Practice 2050 course at Vanderbilt Law tackles this topic head-on.)

Students made their presentations this past Monday evening (Nov. 18) in Indiana Law's Moot Courtroom. It was a marathon session that ran nearly four hours. Because of the novel content, several practicing lawyers showed up to see the presentations. The following companies where profiled:

AdvanceLaw. Privately held company that operates a closed community of legal departments who share information on law firms and individual lawyers in order obtain better quality at a lower cost. Discussed on the LWB here.

Axiom Law. Venture and private equity-based company that helps legal departments more efficiently manage and source their legal needs. Discussed on the LWB here.

Black Hills IP. Privately held onshoring company that does highly specialized IP-related paralegal work -- their internal motto is "innovate and automate." Founders were involved in an earlier LPO that sold to CPA Global a few year ago. Discussed on the LWB here.

Datacert. An e-billing platform for legal departments that has added on a large overlay of data analytics so legal departments can more aggressively benchmark and monitor their expenses to outside counsel.

Ernst & Young. Big Four accounting firm that hires an enormous number of law grads each year for its tax and consulting practices. Very much set up for the tastes and preferences of Millenial professionals including training, work space, and work-life balance.

Exemplify. Start-up company founded by Professor Robert Anderson at Pepperdine Law and his student. Used super computer technology and inductive computational linguistics to identify the market standard language in a myriad of forms found in the SEC Edgar database. Will speed up negotiations on what is "market"; setting stage for eventual market convergence on standards.

Huron Consulting. Publicly held consulting firm that formed out of the ashes of Arthur Anderson's post-Enron collapse. Although a business consulting organization, a surprisingly large part of their business is e-discovery through attorneys in U.S. and India. This group trudged through the company's 10Ks, which was a great educational experiemce for them. Discussed on the LWB here.

Integreon. Venture- and private equity-based LPO that has tried to distinguish itself with its global platform and language capabilities. The company recently cut a deal with Microsoft to handle a large tranche of their patent portfolio work.

KM Standards. Privately held legal knowledge management company that is trying to deconstruct the logic of contracts into standardized terms to enable autonmation and reduce ambiguity (and thus litigation). Potentially very disruptive.

LegalForce. Privately held company hoping to recapture the lost consumer and start-up market through a novel storefront strategy. Financed at least initially through LegalForce's enormously successful online trademark practice run by the company's founder, Raj Abhjanker. More trademarks granted by PTO than any other law firm.

Manzama. Privately held company in Bend, Oregon that scrapes the Internet with machine learning technology to filter business intelligence for law firms and other professional service firms track. Enormously scalable. Daily results presented through a dashboard technology.

Modria. Online dispute resolution system that enables businesses and governments (mostly municipalities) to avoid costly, in-person legal proceedings to resolve a steady stream of similar disputes that are part of running a business or government. Discussed on the LWB here.

Neota Logic. Privately held company founded by former Davis Polk partner and CIO Michael Mills. The company specializes in the creation of expert systems that can improve the quality and efficiency of many transactional and compliance related activities.

Pangea3. LPO with substantial operations in India. Initially back by venture capital in 2004 but subsequently sold to Thomas Reuters in 2010. Employs roughly 1,000 lawyers in the US and India. Discussed on the LWB here.

Recommind. Privately held company that specialized in predictive coding for use in document review and e-discovery. Founders were graduate students in Artificial Intelligence programs at Stanford and UC Berkeley in early 1990s. Discussed on the LWB here.

Stewart Richardson. A privately held Indianapolis-based deposition services company that has gradually and successfully expanded into a broader array of law firm support services. Very focused on technology to make the job of clients easier.

The assignment was an experiment, albeit one that worked very well. Both students and the visiting lawyers reported surprise at the depth and breadth of the innovations taking holding the legal market.

Although some of the innovations where clearly eroding the need for traditional legal service jobs, the profiles also revealed the tremendous opportunities for those willing to stretch into the law and technology space. Many students commented that the evening drove home the point that they need to proactively obtain new skills and knowledge. Why? Because the emerging market has no secure place for the complacent or mediocre. Better for them to discover it in the course of an assignment than for me to say and have it fall on deaf ears.

Many thanks to the profiled company, who exhibited enormous generosity in helping my students complete this assignment. Remarkably, most groups had the benefit of a lengthy conference call with senior leadership. My only regret is that more practicing lawyers did not attend. My students, who have have 1L team and presentation experience, brought their "A" game. I will fix that in the next class, as there is no shortage of NewLaw companies to be profiled.

Why? Because of the final vignette in the story, which features Dan Katz of ReInvent Law fame. We were sitting at the bar at the January 2013 AALS Conference in New Orleans when Dan told me this story. My jaw just dropped. Dan has faith in his students, just like Bellotti had faith in him. Dan believes, so Dan just does. No fear. No bullshit. It was, suffice to say, quite refreshing.

I am reposting the whole vignette in the hope that a few more academics, lawyers, and law students will read it. The title of the post is the last line in the story. To my mind, that Dan Katz line sums up the next ten years of innovation in legal education. Please keep reading until you get to that final line. The insight is worth the effort.

For the past two years, MSU’s Katz was the only full-time law professor who spoke at the LegalTech conference. Katz and Knake are creating a curriculum relevant to the emerging law and technology sector, albeit primarily for companies like Novus Law and Recommind, whose competitive advantage is rooted in process and technology.

Within the legal academy, Katz is an anomaly. Aside from his JD, he has a PhD in political science and public policy from the University of Michigan. However, he focused almost all of his graduate study on complex systems. It’s a relatively new scientific field that uses mathematical modeling to understand how a multitude of human and nonhuman factors interact and influence one another. Human society and the human brain are two examples of complex systems. Neither can be effectively modeled by conventional math or statistics.

The late Larry Ribstein at the University of Illinois was one of Katz’s early mentors. When he went into teaching a few years ago, Katz says, Ribstein told him: “I bet you must feel like an alien. I greatly admire your work. You are definitely on the right track. But the rest of the legal academy is just not ready for you.”

In June 2011, Katz joined the faculty at MSU Law. Michigan State partnered with the Detroit College of Law in 1995 and moved the law college into a building in East Lansing two years later. Though the school’s rebranding efforts did raise its profile, to most of the profession, MSU Law remains a nonprestigious regional law school located in the heart of the Rust Belt.

None of this dissuades Katz from his sincere belief that it is possible to turn any institution into the preferred recruiting grounds for the nation’s emerging law-and-tech industry.

“When I was 18 years old,” explains Katz, “I had the privilege of joining a transformative organization”— as a kicker for the University of Oregon football team, the Ducks. “We were in the Pac-10, but it’s in Eugene, Ore., where it is often cloudy and raining. We had no shot at all with the top recruits from Southern California. So coach Mike Bellotti had to figure out ways to stretch and optimize what some might call second-tier talent.

“Oregon is now a national powerhouse, but the seeds of that success were sown much earlier. It was difficult to be bigger or faster than USC or UCLA. So Coach Bellotti decided we would be better on the details of the game. We would be better conditioned and we would pay significant attention to special teams. Our emphasis on special teams got us better field position. And by the third or fourth quarters, our opponents would have their hands on their burning legs. But because of our conditioning regimen, we had more stamina. Our success became contagious. Over time, we were able to get prized recruits. It was a culture of innovation.”

During Bellotti’s tenure at Oregon, from 1995 to 2008, the Ducks had only one losing season, blotting out decades of mediocre performance. The year that Katz graduated, the Ducks were co-champions of the Pac-10, a feat that makes him beam with pride.

Katz’s “secret sauce” for ReInvent Law is arguably much more important than a degree in complex systems. He looks at the 25 students entering the ReInvent Law Laboratory as raw human potential. Katz also actively recruits potential law school applicants to his program, though he declines to discuss his strategy.

Katz understands that the most attractive candidates for the law and technology sector are those with special skills that are often obtained through prelaw work experience. “But there is no reason why some of those key skills and experiences cannot be learned and obtained right here,” Katz says of the MSU program.

He notes that virtually all law students have high cognitive ability. He feels the key to their future success is mastery of domain-specific knowledge—often in areas that are complementary to law—and the ability to collaborate across disciplines. This requires engagement and an immense amount of time spent on the task. So how does one develop the educational program that will prepare the law student for legal-tech jobs—some that may not yet exist?

Lawyers can successfully adapt to the disruption of the Information Age just like we adapted to the legal challenges of the industrial era -- build a system to create the human capital that is in short supply. This was original logic of the Cravath System, which created teams of specialized business lawyers who could handle the legal needs of rapidly growing industrial and financial clients in the early 20th century. This Clockworks approach still works, but the specifications of the system need to be updated. At the end of this presentation, I offer a prototype of what we might include in a 21st century Clockworks approach to lawyer development.

Presented at the "Innovations in the Law: Science and Technology" Conference, Oregon District of the Federal Bar Association (Sept 20, 2013)

As noted in Part I
of this post, the competitive dynamics among law schools are about to
change due to a combination of two factors: (1) the ABA's collection and
publication more granular data on school-level employment outcomes, and
(2) the decision by U.S. News to make JD Bar Passage Required and JD Advantaged the primary measures for the employed-at-9-months input to its rankngs formula.

The histogram below reveals a near perfect bell curve for this revamped US News
input [click on to enlarge]. This is a huge change from prior years
when schools were all bunched at the 95% level because employment of any
kind was all that mattered. Under the old methodology, any law school that
limited itself to full-time, professional law-related jobs would have
plummeted in the rankings 10 to 50 spots.

Because spring 2013 was the first year with the new methodology, the impact of the change is not well understood. The most stark
fact of the new environment is that the full-time, professional
law-related jobs are in short supply. Among the class of 2011 (the
stats used for the 2013 rankings), this desirable outcome was achieved
by only 63.0% of graduates. When we subtract out full-time, long-term
law-related professional jobs funded by law schools -- a luxury that
only a small number of mostly first-tier law schools can afford -- the
total drops to 61.9%.

Digging deeper, some other significant patterns emerge.

Regional labor markets really matter

The vast majority of law schools feed into the regional labor markets
where they are located. In places like California, those markets are
saturated.

Among
the ABA-accredited law schools in California, 46.5% of the class of
2011 obtained full-time JD Bar Passage Required jobs. The comparable
figure for the remaining ABA-accredited law schools was 56.0%.
Likewise, there is also a disparity for JD Advantage jobs: 6.2% in
California versus 8.3% for schools in all other states. In fact, among
the 19 ranked California law schools, only four -- Stanford, UC
Berkeley, USC, UCLA -- are above the 63.0% average for full-time,
professional law-related jobs.

Based on these data, it should come as no suprise that no law school located in California went up in the 2013 U.S. News
rankings. Stanford, USC, and Santa Clara hung onto their ranking, but
11 California law schools dropped, with an average decline of 11 spots.
Five other Calfornia schools remained in the unranked fourth-tier category.

In
contrast, some of the biggest winners in the methodology change were
flagship public law schools that are relatively big fish in smaller
regional markets. Students at these schools tend to stay in-state and
get JD Bar Passage Required jobs at rates far higher than the 54.9%
average for the class of 2011 average.

Below are the top 15 non-national public law schools based on the proportion of FT Bar Passage Required jobs.

Between
2012 and 2013, the average rankings gain for the above schools was +9 spots. Among this
group, the only school to go down in the rankings was ASU Law (-3). And
that decline was largely due to the fact that ASU reported a 98%
employed-at-nine-months figure for the class of 2010--a figure that drew
suggestions of aggressive gaming. See Brian Tamanaha, When True Numbers Mislead, Balkanization, April 2, 2012.

The
heavier weighting for JD Bar Passage Required jobs also benefits a
handful of lower-ranked private law schools that are practice-oriented
and tend to feed smaller firms within their regional areas.

Campbell (71.4% FT bar passage jobs) went from unranked to #126.

South Texas (64.4% FT bar passage jobs) went from unranked to #144

St. Mary's (78.3% FT bar passage jobs) went from unranked to #140.

Part-Time Law Schools Dominate JD Advantaged Jobs

JD
Advantaged Jobs count the same as JD Bar Passage Required Jobs. But
what, exactly, is included in this category? According to the ABA,

A
position in this category is one for which the employer sought an
individual with a J.D., and perhaps even required a J.D., or for which
the J.D. provided a demonstrable advantage in obtaining or performing
the job, but which does not itself require bar passage or an active law
license or involve practicing law.

See ABA Class of 2012 (definitions).
Many professionals enroll in law school on a part-time basis to improve
their career prospects. It should be no surprise, then, that schools
with part-time programs tend to be the largest producers of graduates
with full-time JD Advantage jobs. In many cases, it is the full-time
job that the student held during law school -- and presumably retains
upon graduation -- that confers the advantage.

Of
the top 10 schools based on the percentage of JD Advantage law school
jobs, eight had part-time programs and the other two were located in a
state capital, which tends to increase the number of opportunities
related to government and public policy.

The schools listed above gained an average of 3.5 spots in the
rankings, albeit the average is pulled down by the inclusion of
Southwestern, which had to weather the brutal California legal market.

It is worth noting that the percentage of JD Advantage jobs is
negatively correlated with the percentage of JD Bar Passage Required
Jobs (-.33) .The table below summarizes the differences between schools with Part-time versus Full-Time only programs.

The
higher percentage of JD Advantage jobs (10.1% versus 6.9%) for schools
with part-time programs is unlikely the results of chance, as the
differences in means are statistically signficant at p < .001. But
what does this inverse relationship mean?

Part-time
programs tend to be affiliated with lower ranked law schools, which in turn would produce a lower average percentage of JD Bar
Passage Required jobs. Yet, part-time programs are also in larger,
urban locations. Thus, in addition to the continued employment of
part-time students with their current employers, the sheer proximity to
large, specialized regional economies probably increases the proportion
of JD Advantage jobs. Indeed, any school in an large metro area would
be foolish to ignore the human capital needs of non-legal employers, as
knowledge of the law is very helpful in navigating through an ever more
complex, regulated, and interconnected world.

What is the Best Strategy for Maximizing Full-Time, Professional Law-Related Jobs?

Largely
through happenstance, the ABA and U.S. News have created an environment
where law schools have to ask this basic but very important question.
Part-time jobs will no longer cut it. And few law schools have the cash
to hire their own grads full-time for a year past graduation -- and if they do, there are probably better uses for the millions of dollars needed annually to
prop up a school's ranking.

The
new gold standard employment outcome is full-time, long-term
professional law-related jobs. The issue of how to maximize this outcome
is so pressing and intricate that it may warrant trade-offs in the
admissions process, favoring students will lower credentials but more
rock-solid employment prospects on the backend at graduation.This is the topic I will take up in Part III.

NALP recently released the employment outcome data for the class of 2012. The good news is that the absolute number of JD Bar Passage Required jobs went up from the prior year. The bad news is that a significantly larger class of entry-level lawyers were competing for those jobs. The class of 2011 totaled 41,623, versus 44,339 in 2012 (+2,716, or +6.5%). And note, the class of 2013 is likely to be even bigger -- roughly +1.6% based on the size of the entering 1L classes in the fall of 2010 (see ABA enrollment data).

Setting aside the year-over-year flucuations, the trendlines suggest a relatively large and persistent shortfall in the number of full-time, professional law-related jobs. I assembled the graph below from NALP data [click on to enlarge].

[Methodological notes: NALP used the JD-Preferred category until the
class of 2011, when NALP and the ABA collaborated on the creation of
the JD Advantage category. According to NALP, the jobs in the two
categories are "largely the same." See NALP, Detailed Analysis of JD Advantage Jobs (April 2013). The figures for 2012 are estimates of full-time employment
calculated from (a) NALP's just released figures for 2012 class size and the percentage breakdowns by job category,
and (b) the percentage breakdowns of full-time versus part-time from the prior year, which also relied on the new JD Advantage definition. In short, basic algebra.]

A reasonable expectation of a 3-year, $100,000+ financial commitment is that nine months after graduation, the entry-level lawyer has secured a full-time professional job. See Legal Whiteboard, June 26, 2007. Those outcomes are reflected in the blue-red-green bars above. Since 2007 (the first year that NALP collected data on full-time versus part-time employment), the percentage of jobs fitting these criteria has fallen from 85.0% to 73.9%. So the overall size of the purple bar -- part-time jobs, nonprofessional, unemployment, etc. -- has grown from 15% to 26.1%.

Unfortunately, the pain does not end there. With a limited pool of full-time professional jobs and the number of graduates trending upward, the law of supply and demand kicks in. Consider this arc of median entry-level salaries of employed graduates: $65,748 for class of 2007, $72,000 for 2008, $72,000 for 2009, $63,000 for 2010, $60,000 for 2011, $61,245 for $2008. So, in short, the odds of landing a full-time professional job have gone down, and so has the starting pay. Yet, tuition and student debt continue to edge up. These unsustainable trends have made law schools fair game for criticism by the media and law student bloggers.

That said, a market correction is clearly underway. A considerable number of prospective law students are deciding (rationally) not to apply to law school -- from 98,700 when the class of 2007 enrolled in the fall of 2004 to an estimated 58,424 for the fall of 2013. Likewise, law schools, to the extent they can afford it, are enrolling fewer students. From the high water mark in the fall of 2010 (49,700), law schools only enrolled 41,400 1Ls in the fall of 2012, and the numbers are sure to be even lower this fall. See Jerry Organ's estimates, Legal Whiteboard, May 20, 2013. To weather this storm, law schools are running significant deficits or drawing down their endowments.

So, can we conclude that the market correction will be complete when the relatively small class of 2017 enters the job market four years from now? I certainly think the smaller number of graduates will help. But I would argue that two things have fundamentally changed:

1. Revenues versus credentials. Law schools are struggling with the need to balance their desire to hang onto respectable LSAT/UGPA medians with a need to generate sufficient revenue to cover their operating costs. If a law school favors revenues this year, its US News rankings could drop, affecting its applicant pool in future years. On the other hand, the combination of shrinking 1L classes and lavish scholarships -- a strategy being pursued by dozens of law schools -- is unsustainable over the medium to long term. A decision to enroll fewer students this year is a three-year commitment to lower revenue. If the smaller entering class is repeated next fall, the budget pain doubles. Do it three years running, and the revenue shortfall triples. Many law schools are not trying to outrun the bear; they are trying to outrun other law schools in their regional market. Some law schools may not make it out of this trough.

2. Competition over full-time, professional law-related jobs. If there is one silver lining that has emerged from this troubled period in U.S. legal education, it is the willingness of the ABA to collect and publish more granular employment outcome data at the law school level. In turn, U.S. News has incorporated these data into its rankings formula. Instead of propping up our rankings by hiring our own students or benefiting when they got jobs nine months out working as a retail manager or a cab driver, under the new 2013 U.S. News rankings formula, only full-time, long-term jobs that are JD Bar Passage Required or JD Advantaged are given "full weight."

It is this second point that is going to push change in how law schools do business--we now have an employment outcome in which the ranking payoff is now fully in allignment with what law students want--full-time, professional law-related jobs.

Specifically, the employed-at-nine-months input to the U.S. News rankings formula is currently given 14% weight. According to theU.S. News law school rankings methodology, the magazine is weighting 22 of the 35 employment outcomes collected and published by the ABA. Among these 22 factors, we don't know the internal weighting. What we do know based on the "full weight" given to JD Bar Passage Required and JD Advantage jobs, is that the highest employed-at-nine-month scores will go to law schools with the highest percentages in these two categories. This is a completely new world for law schools -- one that incentivizes what law students care about when they make the decision to enroll.

A law student who understands legal employer competency models can differentiate him or herself from other graduates by using the three years of law school to develop (and to create supporting evidence to demonstrate) specific competencies beyond just knowledge of doctrinal law, legal analysis, and some written and oral communication skills. . . .

In Part I below, this essay analyzes all available empirical research on the values, virtues, capacities and skills in law firm competency models that define the competencies of the most effective and successful lawyers. Part II examines empirical evidence on the competencies that clients evaluate. Part III evaluates the competencies that make the most difference in fast-track associate and partnership promotions. These data and analyses lead to several bold propositions developed in Part IV:

1. Law students and legal educators should identify and understand the values, virtues, capacities and skills (the competencies) of highly effective and successful lawyers in different types of practice (one major example is law firm competency models analyzed below in Part I);

2. Each student should use all three years of experiences both inside and outside of law school (including the required and elective curriculum, extracurricular activities, and paid or pro bono work experiences) to develop and be able to demonstrate evidence of the competencies that legal employers and clients want in the student’s area of employment interest;

3. Law schools should develop a competency-based curriculum that helps each student develop and be able to demonstrate the competencies that legal employers and clients want; and

4. Both law students and law schools should understand that the values, virtues, capacities and skills of professional formation (professionalism) are the foundation for excellence at all of the competencies of an effective and successful lawyer.

The article presents far more useful information than can be summarized here, and different readers may be struck by different things discussed in the article. One of the most significant takeaways for me, however, is the convergence around an array of competencies frequently not taught in law school. The article analyzes competency models used to assess associate development at 14 medium to large law firms in the Twin Cities and compares that with some other literature on competencies clients look for in attorneys. The analysis demonstrates that in addition to traditionally understood technical skills – legal analysis, oral and written communication, and knowledge of the law – there is significant convergence around several competencies frequently not taught in law school – 1) Ability to initiate and maintain strong work and team relationships; 2) Good judgment/common sense/problem-solving; 3) Business development/marketing/client retention; 4) Project management including high quality, efficiency, and timeliness; 5) Dedication to client service/responsive to client; and 6) Initiative/ambition/drive/strong work ethic.

Whether law schools are going to be able to find efficient ways to offer students opportunities to develop these competencies, it is imperative that we make our students aware that they need to be developing these competencies to give themselves the greatest likelihood of professional success.

Last month, The National Jurist published an article I wrote that was a tribute to Leonard ("Len") Fromm, Dean of Students at Indiana Law from 1982 to 2012. Len passed away in February. The editors at The National Jurist supplied the official title, which I thought was spot on: "What Every Law Student Needs to Excel as an Attorney: Introducing the Fromm Six." [original PDF] I am republishing the essay here because I want as many people as possible to know the story and contribution of this truly great man. [posted by Bill Henderson]

Introducing the Fromm Six, National Jurist (March 2013).

One of the greatest
people in legal education that you have never heard of is a man named Leonard
Fromm.Fromm served as Dean of Students
at Indiana University Maurer School of Law from 1982 to 2012.On February 2, 2013, Dean Fromm passed away
after a relatively short battle with cancer.

I want to discuss an innovation that Dean Fromm contributed to
legal education—a contribution that, I predict, will only grow over time.This innovation is a competency model for law
students called the Fromm Six.But
first, let me supply the essential background.

After several years in counseling and adult education, Dean
Fromm joined the law school in 1982 to preside over matters of student
affairs.Over the course of three decades
he quietly became the heart and soul of the Maurer School of Law.Dean Fromm was typically the first person
that new students met during orientation—the law school administrator who
completed character and fitness applications for state bar authorities and the
voice that called out their names at commencement (with an amazing, booming
tenor). During the three years in between,
Dean Fromm counseled students through virtually every human problem imaginable.His most difficult work was done in his
office with his door closed and all his electronic devices turned off. It was private work that was not likely to
produce much fanfare.

During his tenure at Indiana Law, Dean Fromm’s title was
expanded to include Alumni Affairs.The change did not expand his duties in any
significant way—Len was already working 70 hours a week in a job he loved.
Rather, the change reflected the fact that Indiana Law alumni associated (and
often credited) Dean Fromm with the deepest and most abiding lessons of law
school—overcoming self-doubt; confronting self-destructive behavior; recognizing
the importance of relationships; finding the courage to try something again
after disappointing failure; or discovering the ability to see the world
through the eyes of one’s adversary or opponent.

One of the cumulative benefits of Dean Fromm’s job was the
ability to track the full arc of lawyers’ careers, from the tentative awkwardness
of the 1L year, to involvement in the school’s extracurricular events and
social scene, to coping strategies for students not at the top of their class,
and the myriad, unexpected turns in our graduates’ professional careers.During his tenure he interacted with nearly
6,000 students and stayed in contact with a staggering number of them after
graduation.Invariably, he saw the
connection between law school and a student’s subsequent success and happiness
later in life (noting, in his wise way, that professional success and happiness
are not necessarily the same thing).

In 2008, I started collaborating with Len on a project to
construct a law school competency model.Our first iteration was a list of 23 success factors which we constructed with the help of
industrial & organizational (IO) psychologists.Although valid as a matter of social science,
the list was too long and complex to gain traction with students.In 2010, the faculty who taught Indiana Law’s
1L Legal Professions class got together and reduced the list of competencies to
15.Once again, we found it was too long
and complex to execute in the classroom.

During the summer of 2011, as we were debriefing the
challenges of another year in our competency-based 1L Legal Professions course,
Dean Fromm said, “I have an idea.” A short time later, he circulated a list of
six competencies that were appropriate to 1Ls and foundational to their future growth
as professionals.Finally (or At last),
we now had a working tool!Moreover,
none of the professors teaching the Legal Professions course, including me, wanted
to revise a single word—a veritable miracle in legal academia.

Upon reviewing the list I kidded Len that the new IU
competency model should be called “The Fromm Six”, which was a play on the
famous “Big Five” personality model that forms the bedrock of scientific
personality testing. (Len had a Masters degree in Counseling Psychology as well
as a law degree.)He just laughed.But the “Fromm Six” had a lot of resonance
with the rest of us so the label stuck.

In May 2012, Dean Fromm retired from his position as Dean of
Students and Alumni Affairs.At age 70
he was preparing to join us in teaching the 1L Legal Professions course.This was to be in addition to his usual Negotiations
class, where he was a master.Instead,
within a few weeks of retirement, Len was diagnosed with a virulent cancer that
never let go.

None of us can make sense of Len’s death as it abruptly ended
a life of complete, unselfish service to a large community of students, faculty
and graduates.But, as best I can, I am
inclined to pay tribute to his life.And
to my mind, there is no greater tribute than to publish and publicize the Fromm
Six so that another generation of lawyers can benefit from his wisdom, grace and
kindness.

Each year, the instructors in Indiana Law's 1L Legal Professions class coordinate with Indiana Law's Office on Career and Professional Development (OCPD) to run the Career Choices Speakers Series -- 16 lunchtime forums on Thursdays and Fridays throughout the second semester. It has been an enormous hit with students. Although our 1Ls are required to attend at least three, a huge proportion of the 1Ls attend over ten.

Below is a photo of this Thursday's pizza run for the session on Direct Service Public Interest Lawyers -- 22 pizzas and the laptop/scanner used for attendance. Over the course of semester, we will purchase well over 300 pizzas. Who pays for all of this food and equipment (plus about a dozen dinners for students and alums that occur before and after these events)? An Indiana Law alumni who profoundly believes in the role of ethics and integrity to achieve personal and professional success in life. And he has done so quietly, behind the scenes, every year for the last five.

I thought our alum would enjoy seeing the pizza gurney. Thank you! You are opening students' eyes and helping them make better decisions, all through relationships with other lawyers.

At all price points, the legal services market is rapidly changing and this
disruption represents peril & possibility. This meeting is about the possibility ... about some of the game changers who
are already building the future of this industry.

This is a 1 day event featuring 40 speakers in a high energy format with
specific emphasis on technology, innovation and entrepreneurship.

It will highlight the new and growing portion of the legal services
industry. It will not be boring.

How Much Does it Cost?
This event is generously sponsored in part by the Ewing M. Kauffman Foundation,
Michigan State University College of Law and the ReInvent Law Laboratory.
Thus, tickets are FREE but limited.

There will only be 400 tickets for this free event. Many of them are already taken and when they are gone, they are gone. Thus, if you or your friends/colleagues/students would be interested in
attending -please sign up today. http://guestlistapp.com/events/129990

Final Thoughts …
As I mentioned to Bill Henderson the other day … the old internet adage applies
with equal vigor in the legal services industry "the future is here … it
is just not evenly distributed."

Come join the future already in progress at #ReInventLaw Silicon Valley March
8th, 2013 (and at our other free public events in London and New York
later in 2013).

Jim Moliterno Replies [This is a long reply, so a PDF version online here]

A number of comments to Bill’s January 28 post and
posts regarding it on other blogs cause me to enter this conversation.

Are
students really coming to W&L because of the new curriculum? Yes, to a significant extent. How do we
know? Because the entering students say
so. As do many law schools, we administer a questionnaire to our enrolling
students. Among the questions asked is the obvious one: why are you here?

In the most recent such survey the students were
asked to rank the strengths of the law school. Here are the top ten, in order,
according to the entering students:

Third Year Curriculum

Ranking / Prestige

Quality of Life

National Reputation

Job Placement

General Cirriculum

Clinical Program

Faculty

Financial Aid Award

Size of Lexington

The curriculum reform was
first. Financial aid awards were 9th,
just ahead of the “size of Lexington.” The data does not support the
unsubstantiated claims of some bloggers that students are choosing W&L
because of the generosity of financial aid awards.

The curriculum reform has steadily moved higher on
the “strength” rankings given by enrolled students since 2009. The 2011 and
2012 surveys are nearly identical, and the written comments of students about
their reasons for coming to W&L (none reprinted here), are more striking
than the numbers themselves.

I don’t know of any better data on this proposition
but the statements of those whose reasons are under study. If that data is
unsatisfying to some, then they will continue to be unsatisfied.

Are there other reasons students come to W&L? Of
course. W&L has a highly productive, highly visible faculty engaged in scholarship and projects at
the highest levels. Some students undoubtedly value W&L’s faculty prowess. W&L is highly ranked. Some students undoubtedly
are affected by a top 25 ranking. It has an excellent reputation as a small,
closely-knit academic community. Some
students select for the sense of community and size. No reason will ever be the
only reason for prospective students to choose a law school. Changes made by law schools will affect student
choices for or against a particular law school. The W&L curriculum reform is
positively affecting a significant number of students’ calculus about choosing
W&L.

And some do come
because of the financial aid package they were offered. But the financial aid reason is unlikely to
explain the increase in applications since 2008. Some students, the recipients
of aid, undoubtedly come in part because of the aid. That is no different than the students who
choose [insert name of any school] because of the financial aid they were
awarded. In 2012, about the same number
of offers of admission were made as in previous years, but instead of the usual
130 or 135 admittees choosing to attend, more than 260 made deposits. Some were
asked to defer their attendance until 2013 and once the dust settled we had a
class of 187 instead of the usual 130 to 135. This same class entering in 2012
listed the curriculum reform first and financial aid ninth as strengths of the
law school.

What else was happening in 2008 and 09 when the
applications increased by nearly 33% per year?

In 2009 and 10, while W&L applications were on
the rise, the US News ranking fell
from 25-34 (while its reputation rank among academics stayed steady). It has now recovered to 24. If anything, that should have led to a drop
in applications during 2008-2011 rather than the sharp increases that actually
occurred.

Can we exclude all other possible explanations than
those previously mentioned? Of course
not. It could be that being in a small,
beautiful mountain town is all the rage among young adults and 33% more
students want that now than wanted it in 2007. I know of no data to prove or
disprove that proposition, so it remains one that could be true. The reality is
that the students who have come in recent years rate the curriculum reform
among the top reasons (often the most important reason) for their attendance at
W&L. That matters.

There
is empirical evidence that the W&L curriculum reform is engaging students
more than in the traditional “no plan” third year curriculum.
Is it perfect evidence? Of course not.
Is it definitive evidence that has no flaw? Of course not. Is anything
ever supported by perfect, definite evidence that has no flaw? Not to my
knowledge. We make all of our most
important decisions in life based on the best available evidence. As long as
the evidence is empirically sound and statistically significant, it is worthy
of respect. The evidence of W&L 3L engagement increases is sound and statistically
significant and marks a path toward further research and verification.

One commenter suggested that the data is suspect
because the peer schools have not been identified. Their data belongs to them,
not W&L. LSSSE does not make
specific school data available to other schools. So W&L has only a composite score for
those peer schools. And it would be unseemly for W&L to reveal the specific
schools. I will not do so here. But to
be sure, W&L asked LSSSE to calculate the data from a list of schools
because they are the schools with whom W&L competes for students and
competes in the rankings. It would not have served W&L’s research interests
to learn how it compares with a list of schools that it does not compete with
in the marketplace. No one at W&L has the data for any specific
school.

Nonetheless, do not be mistaken, the
schools with whom W&L is compared in LSSSE data are the schools anyone
would expect them to be: schools that by their geography, rank and quality
compete with W&L in the relevant markets for students and placement.

One observation: in the legal profession and legal
education in particular, the status quo never seems to need empirical justification. Only change is suspect and wrong until proven
definitively to be otherwise. Is there any empirical evidence that the status
quo third year is the best possible third year except that it has been done
that way for a long time? None that I know of. The old adage, “if it ain’t broke don’t fix it” does not apply here. The
third year of legal education is “broke”.

Amid calls for its abandonment by
some, dating back at least to the early 1970s report by Paul Carrington, the
third year is widely acknowledged to be of the least value among the three
years. (See below on W&L’s largely unchanged approach to years 1 and 2.) The Roman Legions
(and more than a few other military powers) have found out that the mere fact
that something has been successfully done before is not sufficient evidence
that it will prevail in the present or future. Arguing in favor of the status
quo based on no empirical evidence, . . . based only on instinct and the
argument that it is the way things are currently done, is an approach doomed to
failure. Just ask Kodak. (And see my
forthcoming book: “The American Legal Profession In Crisis,” Oxford, March
2013.)

How about the claim that “[W&L’s LSAT has] gone
down every year since [the new curriculum was announced], while its GPA rank
has, after a plunge, more or less returned to where it was.” The blogger made
that claim, once again without any data, let alone empirically credible data. Actually the W&L median LSAT was steady at
166 from 2005-2010, dropped 2 points to 164 in 2011 and stayed at 164 for 2012.
It has not “gone down every year since [the new curriculum was announced in
2008].” Meanwhile, the GPA of entering classes, which was in the 3.5 and 3.4
range in 2008-2010, has gone up to the 3.6 range (3.65 and 3.62) in 2011 and
2012. The two modest changes in LSAT and GPA have essentially off-set one
another in US News points. Hardly the reason for pause suggested by the
blogger.

It seems that as long as someone is arguing against
change, no rules apply to the arguments’ underpinnings.

Here
is what the empirical evidence from the LSSSE surveys shows and what it does
not show: students are more engaged in their work and their
work includes more writing, more collaboration and more problem solving. Here
are a few charts even more striking than those Bill used in his post. Together
they say that significantly more than their peers or their predecessors at
W&L, current third year students are working more, writing more,
collaborating more, applying law to real world problems more, and preparing for
class more often. Overall, they describe a harder-working, more engaged student
body. And they are working harder at acquire the skills that matter to success
as a lawyer.

We were born with a fast brain, but we need a slow one to advance civilization, among other things. I am talking about insights of behavioral economics being applied to lawyer decisonmaking and judgment, and I think the answer to my question is "yes". Indeed, I think the insights of behavior econonomics put a whole new and important gloss on the tired adage, "Thinking like a lawyer."

We cover the basics of this topic in my 1L Legal Professions class. Apparently, it resonated with one of my many attentive students, as he/she sent me this amazing science video. It boils down all of Dan Kahneman's brilliant Thinking, Fast and Slow treatise into four very engaging minutes. This is a vegetable that tastes like chocolate. (H/T to a wise anonymous 1L at Indiana Law.)

Here it is in a nutshell. There is empirical evidence that Washington & Lee’sexperiential 3L curriculum is delivering a significantly better education to 3L students—significantly better than prior graduating classes at W&L, and significantly better than W&L’s primary competitors. Moreover, at a time when total law school applicants are on the decline, W&L’s getting more than its historical share of applicants and getting a much higher yield. When many schools are worried about revenues to survive next year and the year after, W&L is worried about creating the bandwidth needed to educate the surplus of students who enrolled in the fall of 2012, and the backlog of applicants that the school deferred to the fall of 2013.

Alas, now we know: There is a market for high quality legal education. It consists of college graduates who don’t want to cast their lot with law schools who cannot guarantee students entree to meaningful practical training. Some might argue that W&L is not objectively better-- that the 3L curriculum is a marketing ploy where the reality falls well short of promotional materials and that, regardless, prospective students can't judge quality.

Well, in fact there is substantial evidence that the W&L 3L program delivers comparative value. The evidence is based on several years' worth of data from the Law School Survey of Student Engagement (LSSSE). I received permission from Professor James Moliterno, someone who took a leadership role in building W&L’s third year program, to share some of the key results (each school controls access to its LSSSE data.) They are below.

But before getting into empirical evidence, I want to put squarely on the table the most sobering finding that likely applies to virtually all of legal education. It is this: On several key LSSSE metrics, W&L has made impressive gains vis-à-vis its own historical benchmarks and its primary rival schools. But even for this leader, there remains enormous room for improvement. More on that below.

Here is the bottom line: Traditional legal education, when it is measured, does not fare very well. Yet, as W&L shows, substantial improvement is clearly possible. We law professors can respond to this information in one of two ways:

Don’t measure, as it may disconfirm our belief that we are delivering a great education.

Measure—even when it hurts—and improve.

I am in the second camp. Indeed, I don’t know if improvement is possible without measurement. Are we judging art work or the acquisition of key professional skills needed for the benefit of clients and the advancement of the public good?

Moving the Market

I doubt I will ever forget Jim Moliterno’s September 2012 presentation at the Educating Tomorrow’s Lawyers (ETL) conference at the University of Denver. He presented a single graph (chart below) showing W&L actual applicant volumes since 2008 versus what would have happened at W&L if its applicant volume had followed national trends.

While law school applicants crested a few years ago, W&L enjoyed a large run-up in volume of applicants, presumably due to the launching of their new 3L program. This larger applicant pool effectively served as a buffer when applicant declines began in 2011 and 2012. Since 2008, overall law school applicants are down -19%, yet W&L is up overall +33%.

But much more significantly, after their experiential 3L year was up and running and the overall legal job market continued to stagnate, W&L yields spiked. Ordinarily they would enroll 135 students. But for the fall of 2012, they received enrollment commitments from well over 260 students. Indeed, at the ETL conference Jim Moliterno said the school had to offer financially attractive deferments to get the class to approximately 185 incoming students -- a 50 student bulge.

When Jim Moliterno showed the above graph and explained the corresponding changes in yield, my good friend Gillian Hadfield, a skeptical, toughminded, evidence-demanding economist who teaches at USC Law, leaned over and said to me, “that is the single most important takeaway from this entire conference.” I agreed. The market for a legal education with practical training is, apparently, much more inelastic than the market for traditional JD programs.

Yet, what is perhaps most remarkable is that a large proportion of incoming students at W&L were enrolling based on little more than faith. Nobody knew for sure if W&L had the ability to pull off their ambitious 3L curriculum. The program relies on a large cadre of adjunct professors, after all, and W&L is located in remote Lexington, Virginia. Many law faculty outside of W&L, and perhaps some inside, thought (or perhaps think) that the program could not live up to the hype. Well, as shown below, the program appears to have produced meaningful gains.

The only data-driven critique anyone can muster is that the gains remain significantly short of perfection. But that critique bites harder on the rest of us. To use a simple metaphor, W&L is tooling around in a Model-T while the rest of us rely on horse and buggy. What ought to be plain to all of us, however, is that, just like automobile industry circa 1910, we are entering a period of staggering transformation that will last decades. And transformation will be roughly equal parts creation and destruction. See Schumpeter.

W&L Data, Internal Historical Benchmark

LSSSE is a phenomenally rich dataset – nearly 100 questions per year on a wide variety of topics related to student classroom experience, faculty interaction, type and quantity of assessments, time allocation, and perceived gains on a variety of dimensions related to personal and professional development. The survey instrument is online here.

Aside from a host of questions related to demographics, career goals, and debt, major sections in the LSSSE include:

Section 1, Intellectual Experience (20 questions)

Section 2, Examinations (1 question)

Section 3, Mental Activities (5 questions)

Section 4, Writing (3 questions)

Section 5, Enriching Educational Experiences (9 questions)

Section 6, Student Satisfaction (7 questions)

Section 7, Time Usage (11 questions)

Section 8, Law School Environment (10 questions)

Section 9, Quality of Relationships (3 questions)

Section 10, Educational and Personal Growth (16 questions)

W&L deserves to be a detailed case study. But frankly, legal education can’t wait. So I will do the best I can to cover the landscape in a blog post. I hope every law faculty member who reads this post makes a strong plea to their dean to enroll in LSSSE. Why? So your school can benchmark itself against the detailed LSSSE case studies that are bound to flow out of W&L and other innovative law schools. Though they don’t get much press, there are, in fact, other innovative law schools.

Brian discusses the bleak employment prospects of law schools, but (through no fault of his own) understates the nature of the structural change that is occurring in the U.S. and global market for legal services. In Part II, I will write about some logical next steps for law schools looking to get ahead of the coming tsunami.

I tried to write Part II, but a blog post just was not up to the task. Further, I sensed that my colleagues were in no mood for half-baked solutions. There has been enormous criticism of legal education on the blogs and in the media, but very little in the way of detailed prescriptions to improve the situation. I felt an obligation to back off on the criticism and focus on solutions. So, in essence, Part II of my Tamanaha review became an article.

I just posted to SSRN an article entitled "A Blueprint for Change" forthcoming in the Pepperdine Law Review. It is both a diagnosis and a proposed solution -- a solution I am actively pursuing. Here is the abstract:

This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.

I have a large backlog of shorter articles and analyses that I have not posted because I wanted my own detailed solution in the public domain. I hope to tie all of these ideas together over the coming weeks.

Thank you, Brian Tamanaha, for writing an book that required me to think in terms of solutions.

Law schools care deeply about their academic reputation. If this were not true, my Indiana Law mailbox would not be stuffed full with glossy brochures sharing the news of faculty publications, impressive new
hires, areas of concentration, and sundry distinguished speaker series, etc.

Because of the timing of these mailings – I
got nearly 100 in Sept and October—I am guessing that
the senders hoped to influence the annual U.S. News & World Report Academic Reputation survey. Cf. Michael Sauder & Wendy Espeland, Fear of Falling: The Effects of U.S. News & World Report Rankings on U.S. Law Schools 1 (Oct 2007) (reporting "increases in marketing expenditures aimed toward raising reputation scores in the USN survey"). But does it work?
A recent study by Larry Cunningham (St. Johns Law) suggests that the effect is,
at best, decimal dust.

Glossy brochures may not reliably affect Academic Reputation, but I have uncovered four factors that are associated with statistically significant increases and decreases of USN Academic Reputation. To illustrate, consider the scatterplot below, which plots the 1993 ordinal rank of USN Academic Reputation against the 2012 ordinal rank [click on to enlarge].

Four sets of dot (Red, Blue, Orange, and Green), each representing distinctive shared features of law schools, tend to be above or below the regression line. These patterns suggest that changes in USN Academic Reputation over time are probably not the result of random chance. But we will get to the significance of the Red, Blue, Orange, and Green dots soon enough.

The primary takeaway from the above scatterplot is that 2012 USN Academic Reputation is overwhelmingly a function of 1993 USN Academic Reputation. Over 88% of the variation is explained by a school's starting point 20 years earlier. Part of this lock-in effect may be lateral mobility. That is, there are perks at higher ranked schools: they tend to pay more; the teaching loads are lighter; and the prestige is greater, etc. So school-level reputations rarely change, just the work addresses of the most productive scholars. This is, perhaps, the most charitable way to explain the enormous stickiness of USN Academic Reputation.

That said, the scatterplot does not show a perfect correlation; slightly less than 12% of the variation is still in play to be explained by influences other than starting position. A small handful of schools have made progress over these 20 years (these are the schools above the regression line), and a handful have fallen backwards (those below the line).

The Red circles, Blue rectangles, Orange diamonds, and Green circles represent four law school-level attributes. The Reds have been big gainers in reputation, and so have the Blues. In contrast, the Oranges have all experienced big declines; and as as a group, so have the Greens. When the attributes of the Red, Blue, Orange, and Green Schools are factored into the regression, all four are statistically signficant (Red, p =.000; Blue, p = .001; Orange, p = .012; Green, p = .000) and the explained variation increases 4% to 92.3%. As far as linear models goes, this is quite an impressive result.

Before you look below the fold for answers, any guesses on what is driving the Red and Blue successes and Orange and Green setbacks?

Below is my most recent column in the National Jurist [PDF version]. Although 100% targeted at law students, I think lawyers and law professors might find this topic interesting. [Bill Henderson]

Richard Susskind is a famous British lawyer and technology
consultant who travels the world giving speeches on how the legal industry is
on the brink of a fundamental transformation.
Because his topic is change, Susskind’s ideas are quite controversial
among lawyers. But as a futurist, he has
a pretty good track record.

Back in 1996, in his book The Future of Law, Susskind predicted that e-mail would someday
become the dominant method for lawyers and clients communicate with each
other. Because the Web was still a
novelty limited to universities and computer aficionados, Susskind’s comments
were viewed as reckless and unprofessional—lawyers would never rely on such an
insecure method to communicate with clients.
Yet, 16 years later, lawyers are daily lives are comprised of an endless
stream of emails coming over their desktops, laptops and smart phones.

For the Labor Day weekend, I thought I would post this video of Henry Rollins, an American singer and artist who has continually reinvented himself since he left his job as a manager of a Hagen-Daaz ice cream store in 1981 to become the lead singer in Black Flag.

The point of posting this video is not to glorify Henry Rollins, but to consider, on its own terms, the life narrative of one interesting person. Rollin's formula of "application, discipline, focus, repetition" sounds a lot like deliberate practice. Based on my own research, I have broken this process into two steps:

Identifying the core elements needed to be become an expert or master in a specific domain -- Jeff Lipshaw was alluding to this in his post on Donald Schon and reflective practice;

Practicing, through thousands of hours of effort, on elements that one lacks in order to move along the continuum to mastery. Number 2 works best when the person has the benefit of feedback and coaching. Of course, they also have to be willing to do the work.

For an individual, it may not be necessary to formally break down the core elements into specific pieces. Instead, these pieces can be obtained iteratively through trial and error and reflection. I think this is what Rollins has done. It is a formula that works for one highly determined person. But can it be scaled?

As an educator, I am interested in making the components of practice mastery more explicit and transparent--this is step #1 above. To accomplish step #1, we still need to do foundational research that deconstructs the careers of outstanding lawyers into sets of specific skills, abilities, and competencies--i.e., the things to be practiced. (Notice I said "sets" -- outstanding lawyers often master different domains.) At present, the Shultz-Zedeck Effective Lawyering study is the only solid published research that is even adjacent to this topic.

Once these components of effective lawyers are identified--i.e., a law school identifies the skills, abilities and competencies it wants to develop over the course of three years--we move to step #2. This step raises complex questions of order (which competencies first, which come second, etc.) and pedagogy (best and most cost-effective methods) and measurement (how do we know we have made progress?). I think the answers would have to come iteratively, through trial and error.

Any educational institution pursuing this strategy would have to commit itself to studying and continuously improving the educational process. For law schools, this would be new. At the vast majority of law schools, we mostly teach legal knowledge, we don't articulate our intended educational outcomes, we let students pick their courses ala carte with minimal guidance, and we don't engage in serious measurement. But we could. I think this is the next great frontier--an enormous opportunity for any law school willing to think for itself, to experiment and to change. The data needed would come from one's own alumni, ideally supplemented with data sharing within a law school consortium.